Kavanaugh Supreme Court Fight Will Be All About Health Care

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The fight over President Trump’s pick of Appeals Court Judge Brett Kavanaugh to the Supreme Court is on, with Democrats launching what The Washington Post called “an all-out blitz” to defeat the nomination.

So get ready to hear a lot about health care in the coming days.

The Washington Post’s Dana Milbank notes that former Republican senator Jon Kyl, now a lobbyist for the pharmaceuticals industry, has been tapped to guide Kavanaugh’s path through the Senate. Why? Because by picking Kavanaugh, “Trump has guaranteed that health care will be at the center of the confirmation fight,” Milbank says.

Democrats welcome that fight, even if they have little chance of actually blocking the nomination. “The liberal base is fired up about abortion rights, but Senate Democratic Leader Charles Schumer (N.Y.) will seek to emphasize access to affordable health care as much as Roe v. Wade in the battle over the Supreme Court,” The Hill’s Alexander Bolton reports.

Focusing on health care might make sense for Democrats in a number of ways:

It reinforces the party’s preferred midterm election messaging in an area where voters say they trust Democrats more than Republicans.

Framing women’s reproductive rights as a matter of access to health care will be less polarizing in red states where seats are at stake in November, Bolton writes.

Playing up access to affordable health care may also put more pressure on Republican Sens. Susan Collins of Maine and Lisa Murkowski of Alaska, both of whom voted against Obamacare repeal last year.

If confirmed, Kavanaugh may get to weigh in on any of a number of cases with the potential to reshape health policy well beyond abortion rights. Despite his long legal record, “many of his health-related decisions are open to parsing from either side of the aisle and don't actually provide a clear insight into where he'd stand on the Supreme Court,” The Washington Post’s Colby Itkowitz says.

Here are some key issues and cases that could be decided by the Supreme Court and Kavanaugh:

Obamacare’s protections for people with pre-existing medical conditions: Americans overwhelmingly support keeping these protections in place, according to a Kaiser Family Foundation poll from last month, but Trump’s Justice Department has asked a federal court to rule that those provisions of Obamacare are invalid. The case will soon be heard in a district court in Texas and could make its way to the Supreme Court before long. Sen. Joe Manchin of West Virginia, one of the few Democrats who might back Kavanaugh, said in a statement that he wants to hear where the judge stands on the ACA protections for those with pre-existing conditions before deciding whether to confirm him.

Medicaid: A federal court late last month blocked Kentucky’s plan to introduce work requirements for Medicaid recipients. The Trump administration is likely to appeal the ruling. Other states are also implementing work requirements. “As more states experiment with these programs and the cases wind their way through the courts, the Supreme Court may weigh in and shape how low-income Americans access Medicaid across the country,” Arielle Kane, director of health care at the Progressive Policy Institute, writes at the New York Daily News. The high court could also be asked to consider whether private health care providers can sue over Medicaid reimbursement rates, a question that could open the door to state funding cuts.

Risk adjustment payments to insurers: The Trump administration just froze billions of dollars of payments to insurers who enroll costlier-than-expected patients. The payments come from money collected from other insurers in the individual market. Legal challenges involving these payments are making their way through the courts. In the meantime, “the insurers in the individual market must manage uncertainty and constant change — resulting in higher prices for health care consumers,” Kane writes.

Industry consolidation: “Last year, four of the largest insurers tried, and failed, to merge into two. This year, CVS has proposed merging with Aetna, Amazon has acquired PillPack, and Walmart is seeking to combine with Humana,” Kane writes. “This so called ‘vertical integration’ raises questions about monopolies, competition and health-care pricing. It is likely that at some point courts will weigh in.”

As editor in chief, Yuval Rosenberg oversees all aspects of The Fiscal Times' website and email newsletter. His writing has appeared in publications including BusinessWeek, CNBC.com, CNNMoney.com, Fast Company, Fortune, Newsweek, Money and Time.